6. Privacy rights of test subjects and privacy obligations of data controllers


d. Are there different policies for one industry versus another? Is your industry considered high-risk or are any of the jobs considered “safety-sensitive” or “safety-critical”? Some countries have identified specific industries as “high risk” and some jobs performed in other industries as “safety-sensitive” or “safety-critical” (e.g., railway operators, airplane pilots, and medical practitioners). Industries such as commercial transportation, mining, energy production, and medical services may have self-regulating standards, rules, or regulations related to drug use for safety purposes.


4. Employer’s obligations to applicants, employees, the company and the community upon the discovery of possession, transportation,


exchange, and/or use of drugs and/or alcohol


Various countries hold the employer or its testing agent responsible for disclosure of discovered use of drugs. Failure to disclose may create liability for the employer, contract test administrator, and/or lab. For example, in Portugal, the Labor


46 datia focus


Code identifies the safety, hygiene, and health requirements for workplaces. It identifies the employer’s general duties, the workers’ duties, and the employer’s duty to give information and consult its workers or their elected representatives about the safety, hygiene, and health measures in the workplace.


5. Employment rights of applicants and employees


Outside the U.S., many countries have implemented laws and regulations that protect employees against loss of employment and/or loss of advancement opportunities. Such laws and regulations limit the actions that an employer can take regarding drug testing and regarding disciple following a discovery that the worker is using drugs or working under the influence of the same. In those countries, an employer may not be able to condition the employment or promotion of an employee upon successfully passing a drug test. In some countries, an employer may not discipline and/or terminate an employee for refusal to submit to a drug test, even though the employee may have given writen consent or agreed to the testing by contract or by collective bargaining agreement. In other countries, the employer may be obligated to provide or finance treatment when drug use is discovered.


Many countries have guaranteed in their constitutions the right to privacy of the person, their homes, properties, and papers. Others have provided habeas data protections (i.e., a right to (i) know the content of data collected by a data controller; (ii) correct errors in the data; and (iii) confirm destruction of erroneous data by constitution or legislation). Still other countries have set up protocols requiring the registration of data banks and/or data controllers (i.e., those public or private organizations that gather, manage, and possibly transfer information of data subjects). It is important that the employer determine which type of laws affect the information that may be gathered from data subjects (e.g., applicants and workers) as test samples are collected, tested, and the results recorded.


Recommendation Your consultants should work with atorneys practicing in the markets where you desire to build business. Rely only on those consultants and atorneys who demonstrate a broad understanding of local laws, regulations, customs, culture, government policies, worker rights, industry practices, privacy obligations, and business integrity standards. ❚


Randy Godard, JD, Senior Legal Consultant, has worked as an attorney for over 30 years with experience in international trade and busi- ness transactions. During


his career, he has specialized in comparative legal systems, international commercial law, anti-corruption, privacy, distribution, U.S. and international trade sanctions, and global encryption regulations. He has worked exten- sively with legal matters involving the United States, Latin America, and the Caribbean.


fall 2017


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